Citation Nr: 0025982
Decision Date: 09/28/00 Archive Date: 10/04/00
DOCKET NO. 91-49 896A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151
(formerly 38 U.S.C. § 351) for diffuse large cell histiocytic
gastric lymphoma as a result of Department of Veterans
Affairs medical treatment.
REPRESENTATION
Appellant represented by: Massachusetts Department of
Veterans Service
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from July 1943 until April
1946.
This matter came before the Board of Veterans' Appeals
(Board) from a May 19991 rating determination of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts.
The veteran's only service-connected disorder is residuals of
a dislocation of the left shoulder, rated 10 percent
disabling since December 3, 1975. A decision of the Board in
March 1980 denied a rating in excess of 10 percent for that
disorder.
Following the May 1991 rating action, the veteran was
notified in 1992 that his appeal was stayed because 38 C.F.R.
§ 3.358(c)(3), requiring VA fault-or-accident in order for
the appellant to prevail in a claim for compensation under 38
U.S.C. § 1151 had been invalidated in November 1991 by the
United States Court of Appeals for Veterans Claims (hereafter
the Court) in Gardner v. Derwinski, 1 Vet. App. 584 (1991).
The Court's decision was affirmed by the United States Court
of Appeals for the Federal Circuit (Court of Appeals) in
Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993).
Subsequently on December 12, 1994, the Supreme Court issued
its decision in Gardner, affirming the decisions of the Court
and the Court of Appeals. Brown v. Gardner, 115 S. Ct. 552,
556 (1994). On March 16, 1995, amended regulations were
published deleting the fault or accident requirement of 38
C.F.R. § 3.358, in order to conform with the Supreme Court's
decision.
The case has now been returned to the Board. At the RO and
travel board hearings the veteran testified that he had a
variety of disabilities as a result of the chemotherapy he
had had for his gastric cancer; specifically, ulcers on his
leg, feeling tired, sweating excessively, headaches,
decreased visual acuity, impotence, and tinnitus (page 7 of
the February 1992 RO hearing and pages 4 and 5 of the May
2000 travel board hearing) (see also the notice of
disagreement (NOD) of June 1991).
Lastly, the Board notes that the veteran claims that Motrin,
prescribed by VA, caused a gastric ulcer. However, neither
the May 1991 rating action appealed nor any rating action
thereafter has specifically addressed entitlement to
compensation under 38 U.S.C.A. § 1151 for a gastric ulcer as
being due to Motrin prescribed by VA. This matter is also
referred to the RO for adjudication.
FINDING OF FACT
No medical causal relationship or nexus between the veteran's
taking analgesic medication, including Motrin, prescribed by
VA, and his development of diffuse large cell histiocytic
gastric lymphoma is demonstrated.
CONCLUSION OF LAW
The veteran has not submitted a well grounded claim for
compensation under 38 U.S.C.A. § 1151 for diffuse large cell
histiocytic gastric lymphoma. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The provisions of 38 U.S.C.A. § 1151 provide that where there
is no willful misconduct by the veteran, as in this case,
additional disability resulting from VA hospitalization,
medical or surgical treatment causing injury, or aggravation
thereof, shall be compensated as if service connected. While
the statute requires a causal connection, not every
additional disability is compensable because 38 C.F.R.
§ 3.358(c) provides that it is necessary to show that
additional disability is actually the result of a disease or
injury, or aggravation of an existing disease or injury, and
not merely coincidental therewith. The provisions of 38
C.F.R. § 3.358(b)(2) provide that compensation is not
warranted for the continuance or natural progress of a
disease or injury, and 38 C.F.R. § 3.358(c)(3) provides that
compensation is not payable for the necessary consequences of
medical or surgical treatment or examination properly
administered with the express or implied consent of the
veteran or, in appropriate cases, the veteran's
representative. The necessary consequences are those which
are certain to result from, or were intended to result from,
the examination or medical or surgical treatment
administered.
The new VA regulations with respect to claims for benefits
under 38 U.S.C.A. § 1151, as interpreted following the
opinion of the Attorney General, preclude compensation where
disability (1) is not causally related to VA hospitalization
or medical or surgical treatment or (2) is merely
coincidental with the injury, or aggravation thereof, and VA
hospitalization or medical or surgical treatment, or (3) is a
continuance or natural progress of disease or injury for
which VA hospitalization or medical or surgical treatment was
authorized, or (4) is the certain or near certain result of
the VA hospitalization or medical or surgical treatment. If
there is no willful misconduct, the additional disability
will be compensated, as if service connected, if it does not
fall into one of the above-listed exceptions.
During the pendency of this case the Departments of Veterans
Affairs and Housing and Urban Development, and Independent
Agencies Appropriations Act, 1997 (Act), Pub. L. No. 104-204,
__ Stat. ___ (1996), was enacted. In pertinent part, this
Act serves to amend 38 U.S.C. § 1151 with regard to what
constitutes a "qualifying additional disability" susceptible
of compensation. The purpose of the amendment is, in effect,
to overrule the Supreme Court's decision in the Gardner case,
and to reinstitute a requirement of fault for recovery under
the provisions of § 1151. In Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1991) it was held that where the law or
regulation changes after a claim has been filed or reopened,
but before the administrative or judicial appeal process has
been concluded, the most favorable version will apply unless
the law or regulations provide otherwise. This mandates that
a new law or VA regulation is not applicable when it is less
favorable and it does not have a retroactive effect and VA
must fully adjudicate a claim under both old and new law or
regulations to determine the extent to which each may be
favorable to the claimant. DeSousa v. Gober, 10 Vet.
App. 461, 467 (1997) (citing Lasovick v. Brown, 6 Vet.
App. 141, 151 (1994)).
Moreover, in VAOGCPREC 40-97 it was held that "[a]ll claims
for benefits under 38 U.S.C. § 1151, which governs benefits
for persons disabled by treatment or vocational
rehabilitation, filed before October 1, 1997, must be
adjudicated under the provisions of section 1151 as they
existed prior to that date." 63 Fed. Reg. 31263 (June 8,
1998). Here, it is clear that the version of the law prior
to the recent amendment is more favorable since it does not
require an element of fault on the part of VA, and the claim
was originally filed prior to October 1, 1997 and, thus, the
prior [no-fault] version will be applied.
Lastly, it does not appear that the RO has adjudicated the
claim under the new provisions, i.e., Pub. L. No. 104-204
which reinstitute an element of fault in the statute.
However, since the prior version was more favorable, and will
be applied by the Board, there is no prejudice to the
veteran.
It was held in Jones v. West, 12 Vet. App. 460, 464-65 (1999)
(citing Boggs v. West, 11 Vet. App. 334, 344-45 (1998)
(considering prior section 1151 claim as a claim for service
connection)) that a claim for disability or additional
disability under 38 U.S.C.A. § 1151 (West 1991) is treated as
a claim for service connection, "a person who submits a claim
for benefits under a law administered by the Secretary shall
have the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded." 38 U.S.C. § 5107(a). A well-grounded claim
is "a plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
[section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). Generally, for a service-connection claim to be well
grounded a claimant must submit evidence of each of the
following: (1) medical evidence of a current disability; (2)
medical evidence, or in certain circumstances lay evidence,
of in-service incurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between the
asserted in-service injury or disease and the current
disability. See Elkins v. West, 12 Vet. App. 209, 213 (1999)
(en banc) (citing Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table), and Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir.
1997) (expressly adopting definition of well-grounded claim
set forth in Caluza, supra), cert. denied sub nom. Epps v.
West, 118 S. Ct. 2348 (1998) (mem.)).
Thus, the requirements for a well-grounded claim under the no
fault version of 38 U.S.C.A. § 1151 are, paralleling those
set forth in Caluza, supra, generally as follows: (1) medical
evidence of a current disability; (2) medical evidence, or in
certain circumstances lay evidence, of incurrence or
aggravation of an injury as the result of hospitalization,
medical or surgical treatment, or the pursuit of a course of
vocational rehabilitation under chapter 31 of 38 U.S.C.; and
(3) medical evidence of a nexus between that asserted injury
or disease and the current disability.
Similarly, "assuming, without deciding," [boldface added]
that a continuity-of-symptomatology analysis [under 38 C.F.R.
§ 3.303(b) (1991)] would apply in a prior section 1151 case,
the veteran's claim generally would be well grounded if he
submitted evidence of each of the following: (a) evidence
that a condition was "noted" during his VA hospitalization or
treatment; (b) evidence showing continuity of symptomatology
following such hospitalization or treatment; and (c) medical
or, in certain circumstances, lay evidence of a nexus between
the present disability and the post-hospitalization/treatment
symptomatology. (Any other element of a successful prior
section 1151 claim, such as that the "injury [is] . . . not
the result of such veteran's own willful misconduct" would be
for consideration in the adjudication of the merits of a
well-grounded prior section 1151 claim.) The credibility of
the evidence presented in support of a claim is generally
presumed when determining whether it is well grounded. Jones
v. West, 12 Vet. App. 460, 464-65 (1999) (citing Elkins, 12
Vet. App. at 219 (citing Robinette v. Brown, 8 Vet. App. 69,
75-76 (1995)).
Once the appellant has established a well-grounded claim, the
Board is required to adjudicate the claim on the merits and
consider the other restrictions imposed by this section.
See, e.g., 38 U.S.C. § 1151 (must not be the result of the
veteran's own willful misconduct); 38 C.F.R. § 3.358 (1996)
(additional disability must not be the "natural progress" of
the condition)." Jimison v. West, 13 Vet. App. 57, 78
(1999).
In Jimison it was not held that the 38 C.F.R. § 3.303(b)
continuity-of-symptomatology analysis applied in no fault
§ 1151 claims but, rather, the Court stated that it would
"assume for the purposes of this discussion that this
regulation may be used for claims under 38 U.S.C. § 1151,
because the Court had not yet addressed that subject. See
Jones, supra. Nonetheless, this doctrine does not relieve
the appellant of his burden of providing medical evidence
which establishes a relationship between his current
disability and his continuous symptomatology. Here, the
appellant has failed to present the required medical evidence
in order to provide a well-grounded claim under this
regulation, even if it applies." Jimison, at 79.
The doctrine of resolving doubt in favor of a does not ease
the initial burden of submitting a well grounded claim and is
not applicable in determinations of well groundedness; rather
it is only after a well grounded claim is submitted that this
doctrine, embodied in 38 U.S.C.A. § 5107(b), applies.
Background
In an October 1976 letter the veteran stated that the many
different pills which VA had given him for left shoulder pain
had not provided much relief. In a January 1977 letter he
stated that in April 1976 a VA physician had prescribed
Motrin in 400 milligram tablets and although the prescription
had been renewed in November 1976 it gave him next to no
relief.
An April 22, 1976 VA outpatient treatment (VAOPT) record
reflects that the veteran was prescribed Motrin but had had
only minimal relief in the past with numerous analgesics. A
VAOPT record of June 1978 reflects that the veteran received
Motrin from a VA facility for shoulder problems and in
September 1978 it was noted that he had been given Indocin.
In a January 1979 letter the veteran stated that a VA
physician had given him Indocin for pain.
In November 1979 the veteran submitted copies of prescription
labels from 1975 to 1979 but none pertain to Motrin except
for a handwritten notation of April 22, 1976. Also in
November 1979, the veteran submitted a copy of a
chronological listing of his treatment since 1975.
At a November 1979 RO hearing, in conjunction with a claim
for an increased rating the veteran testified that he took
Tylenol and Indocin for his left shoulder disorder (page 7 of
that transcript), although he had taken Darvon in the past
which had made him forgetful (page 8).
The veteran filed his claim for compensation under
38 U.S.C.A. § 1151 for gastric cancer as due to medication
for his left shoulder disorder in November 1990.
On file are VAOPT records of 1990 and 1991. Upper
gastrointestinal (UGI) endoscopies in April and August 1990
suggest that the sites of the veteran's gastric ulcers may
have been the sites of biopsies in October 1990 which led to
a diagnosis of large cell histiocytic gastric lymphoma.
Following VA hospitalization in November 1990 for gastric
lymphoma the veteran was given chemotherapy. Additional
VAOPT records of 1990 and 1991 reflect that in November 1990
the pros and cons of surgery and chemotherapy, versus
chemotherapy alone, were discussed with the veteran and his
family, as were the side-effects of chemotherapy, e.g.,
infection, bleeding, hair loss, and neurological and vascular
side-effects.
On file is a May 1991 handwritten statement from a physician
of the RO rating board which states that "[t]he cause of
malignant large cell histiocytic lymphoma remains unknown.
There are numerous probable causes - included among these
are: genetic abnormalities - abnormal immune system, viruses
of various groups & several other possible causes none of
which are of drug origin."
At the February 7, 1992 RO hearing the veteran testified that
he had taken Motrin for over 25 years for his service-
connected residuals of a left shoulder dislocation and until
just before he had a gastric ulcer, he had taken 600
milligrams daily (page 2 of that transcript). He had stopped
taking Motrin, and anything with aspirin, upon his
physician's advice when he began treatment for a gastric
ulcer (page 2). His gastric ulcer condition was diagnosed
during hospitalization in June 1989 (page 3). His gastric
lymphoma was diagnosed by VA in about April 1990, after
biopsies were taken (page 5). VA physicians had informed him
that his gastric cancer was cause by his having taken Motrin
for many years (page 5). His Motrin was obtained from VA but
he never received any instruction or information on the
possible adverse side-effects of Motrin (page 6).
On file is an April 1995 statement, with attachments, from
the Chief of the Health Information Section of the Brockton,
VA Medical Center which reflects that the veteran was
prescribed Motrin in October 1978 and last prescribed Motrin
in October 1989. According to the Pharmacy Service there was
no documentation of counseling, and patients were not
routinely given package inserts [with pharmacological
information] nor was formal counseling given during the time
the veteran received Motrin.
The veteran submitted into evidence two photocopied pages
from the Physician's Desk Reference (PDR) pertaining to
Motrin which indicate that serious GI toxicity, e.g.,
bleeding, ulceration, and perforation could occur at any
time. With an incidence of less than 1 % there was a
probable causal relationship with leukopenia.
The report of an official June 1998 examination, conducted at
the request of the RO for the purpose of obtaining a medical
opinion as to possible causation between taking Motrin and
the development of a gastric ulcer and gastric cancer,
reflects:
[The veteran] presents today for consideration of a
claim that his 1990 diagnosis of gastric cancer
(lymphoma) is a result of taking Motrin for many
years for pain from the 1944 left shoulder injury.
After a physical examination, it was reported that the
diagnoses included:
History of gastric ulcer and gastric cancer
(lymphoma).
A review of the medical record indicates that the
initial gastroscopy detected a healing ulcer and also
detected an abnormal area in the gastric antrum. It
is not clear as to whether lymphoma was detected in
the healing gastric ulcer or just in the antrum; it
appears that the biopsy was from the antrum, not the
ulcer itself. This is an important distinction since
medications like Motrin may cause gastric ulcers, but
are not associated with gastric lymphoma in the
medical literature.
It was concluded that:
It is not possible at this time to associate the
gastric lymphoma either with Motrin or with a gastric
ulcer. Medical literature reveals that malignancies
associated with gastric ulcers are generally gastric
adenocarcinomas, which are entirely different from
lymphomas.
It is possible that the diagnosis of gastric lymphoma
was a coincidental finding at the time of the initial
gastroscopy performed for a bleeding ulcer. Perhaps
a more systematic review of the pathology reports and
specimens could determine if the lymphoma originated
from the gastric ulcer or from the antrum of the
stomach. If it were shown to have arisen from the
antrum of the stomach, then any claimed association
between ulcer and cancer is further weakened.
There is now no objective evidence of disability from
either gastric ulcer or gastric lymphoma. At the
present time, [the veteran] experiences only
occasional "unsettled feelings" in the stomach; he
also indicates a chronic feeling of anxiety about the
possibility of recurrence of his lymphoma. He still
undergoes periodic gastroscopy for surveillance of
the site of lymphoma; all follow-up evaluations thus
far have been negative for recurrence.
At the May 15, 2000 hearing before the undersigned member of
the Board, sitting at Boston, Massachusetts the veteran
testified that during his initial VA hospitalization for a
gastric ulcer, his physicians had felt that it was the
increasingly larger doses of Motrin which had caused his
gastric ulcer (page 3). A lot of physicians, VA and private,
had told him that taking Motrin had caused his
gastrointestinal problems (pages 7 and 8). The veteran had
forwarded letters written by VA physicians but the veteran
was unaware of the contents of those letters (with respect to
the issue of medical causation) because he had not read them
(page 9). He was unaware of where these physicians could now
be found, although he had been informed that some of these
physicians were now practicing medicine overseas (page 11).
Submitted into evidence at the travel board hearing were
duplicate copies of VA prescription labels and computerized
prescription printouts. Also submit was a copy of literature
from an unknown source concerning the effects of Motrin
(which is essentially to the same effect as the copy of
information from the PDR which was previously on file). Also
submitted were copies of statements from the veteran which,
in essence, restated his contentions and testimony.
Analysis
Here, because the veteran's claim was filed prior to October
1, 1997, adjudication of the merits of the claim under
38 U.S.C. § 1151 would be on the basis of the "no fault"
provisions then in effect. However, adjudication on the
merits occurs only after a well grounded claim has been
submitted. Likewise, any consideration of the extent of the
veteran's informed consent (i.e., whether VA properly
informed him of possible adverse side-effects) would be a
matter to be addressed on the merits.
The veteran has alleged VA fault because he was not given
information about medication prescribed by VA, particularly
with respect to the development of adverse side-effects.
However, this case is being adjudicated irrespective of any
possible VA fault. That is, in order for the veteran to
prevail on the merits, it is not necessary to establish VA
fault. However, before adjudicating the merits, the claim
must first be well grounded. In this regard, it is conceded
that he had a gastric ulcer and thereafter had gastric cancer
(lymphoma) and all that must be established to make the claim
well grounded is that the gastric cancer (lymphoma) is
related in some way to VA action or inaction, to include the
medication prescribed by VA.
With respect to whether VA prescribed the Motrin for a
service-connected disorder (and here there is also evidence
that he has nonservice-connected disability or disabilities
for which analgesic medication may have been prescribed), if
the medication caused additional disability, then entitlement
to compensation is warranted under 38 U.S.C.A. § 1151
regardless of which disability or disabilities, i.e.,
service-connected or nonservice-connected, for which the
medication was prescribed. In other words, it is VA action
or inaction (among other criteria) which is dispositive and
not whether the disability (or disabilities) treated by VA
were service-connected.
The veteran's testimony as to the sequence of events that
occurred, i.e., taking analgesic medication and the
development of first a gastric ulcer and then gastric
lymphoma, is corroborated by VA clinical records. However,
the veteran is not competent to testify as to the side-
effects of any medication he was prescribed or as to the
etiology of his gastric ulcer or gastric lymphoma. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992). He does not possess
the expertise necessary to diagnose a disability or comment
on the etiology of symptoms.
Similarly, the veteran has indicated that various physicians,
VA and private, have indicated that there is a causal
relationship between his having taken Motrin and the
development of gastric lymphoma. However, lay statements,
testimony or history of what a doctor said or diagnosed is
not competent medical evidence. While hearsay may be used in
VA claims-adjudication, when the underlying medical nature of
evidence has been significantly diluted, as in the connection
between a lay account of past medical information, and
filtered through layman's sensibilities, such evidence is too
attenuated and inherently unreliable to constitute 'medical'
evidence. This is true even in the context of adjudicating
whether a claim is well grounded. Generally see Grottveit v.
Brown, 5 Vet. App. 91, 92-93 (1993); Warren v. Brown, 6 Vet.
App. 4 (1993); and Robinette v. Brown, 8 Vet. App. 69, 77
(1995).
The information contained in the pages of the PDR submitted
by the veteran does not indicate that Motrin is linked in any
way to gastric lymphoma. The use of the May 1991 statement
of a VA rating board physician may have been improper because
that information was not first conveyed to the veteran or his
representative. However, the improper reliance upon medical
evidence is not prejudicial in the absence of a well grounded
claim. Ross v. Derwinski, 3 Vet. App. 141, 145 (1992) (in
the absence of a well grounded claim any error in subsequent
administrative proceeding is harmless).
The medical opinion expressed in June 1998, is the only
competent medical evidence that specifically addresses the
matter of whether there is a medical nexus which makes the
claim well grounded. However, the 1998 medical opinion was
not favorable. To the contrary, it tends to rebut rather
than buttress the claim. Accordingly, the claim for
compensation under 38 U.S.C. § 1151 for diffuse large cell
histiocytic gastric lymphoma is not well grounded
ORDER
The claim for compensation under 38 U.S.C. § 1151 for diffuse
large cell histiocytic gastric lymphoma as a result of
Department of Veterans Affairs medical treatment is denied as
not well grounded.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
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